This week in 2010, we continued following the story of the school caught spying on students through webcams in their laptops, and the details were not looking good. Especially when we discovered the student in question was only guilty of eating candy.

The future of digital journalism was even less clear this week in 2005. Some newspapers thought the best approach was to keep lots of content offline. The New York Times, for its part, bought About.com (since sold to Barry Diller's IAC). Of course, iPad editions weren't exactly an issue yet — at this time, analysts were still arguing about the distinction between PDAs and smartphones. That didn't stop lots of companies from pushing mobile TV, though, and while we still weren't sure how big of a draw it that would really be, we were happy to see Showtime start experimenting with straightforward online streaming.

This was the year that SHA-1 encryption was broken. Unfortunately, a decade later it's still in widespread use — though most companies are on track to deprecate it by 2017.

We've got two milestones in the history of the internet and computing this week. First, on February 15th, 1946, the ENIAC was formally dedicated. It was the world's first general-purpose electronic computer, containing 17,468 vacuum tubes, 7,200 crystal diodes, 1,500 relays, 70,000 resistors, 10,000 capacitors and around 5 million hand-soldered joints according to Wikipedia.

Vice president and Chief Internet Evangelist for Google. He is responsible for identifying new enabling technologies and applications on the Internet and other platforms for the company.

That suggests someone whose main job is to look forward, rather than back, and with a certain optimism too. But an article in the Guardian reports on a speech he gave in which he is not only concerned with the past of online technologies, rather than their future, but is also issuing an important warning about their fatal flaws:

Humanity's first steps into the digital world could be lost to future historians, Vint Cerf told the American Association for the Advancement of Science's annual meeting in San Jose, California, warning that we faced a "forgotten generation, or even a forgotten century" through what he called "bit rot", where old computer files become useless junk.

Of course, he's not the first person to raise that issue -- Techdirt wrote about this recently -- but Cerf's important contributions to the creation of the Internet, and his current role at Google, lend particular weight to his warning. That said, the Guardian article seems to miss the central reason all this is happening. It's not that it's really hard to create emulators to run old programs or open old files. The real issue is tucked away right at the end of the article, which quotes Cerf as saying:

"the rights of preservation might need to be incorporated into our thinking about things like copyright and patents and licensing. We're talking about preserving them for hundreds to thousands of years," said Cerf.

The main obstacles to creating software that can run old programs, read old file formats, or preserve old webpages, are patents and copyright. Patents stop people creating emulators, because clean-room implementations that avoid legal problems are just too difficult and expensive to carry out for academic archives to contemplate. At least patents expire relatively quickly, freeing up obsolete technology for reimplementation. Copyright, by contrast, keeps getting extended around the world, which means that libraries would probably be unwilling to make backup copies of digital artefacts unless the law was quite clear that they could -- and in many countries, it isn't.

Once again, we see that far from promoting and preserving culture, intellectual monopolies like patents and copyright represent massive impediments that may, as Cerf warns, result in vast swathes of our digital culture simply being lost forever.

Today, many US cities are competing for a shot at Google Fiber, but it was this week in 2010 that the project was first announced — though we knew it couldn't spur real broadband competition all by itself.

Today, the anti-net-neutrality argument that people don't need or want faster broadband and wireless speeds is ludicrous, self-serving and shortsighted — but, admittedly, in 2005 things weren't quite so clear. There was some evidence that people couldn't find enough to do with broadband and were even giving it up for dialup, and the hype over forthcoming 3G was stymied by the fact that a lot of people weren't sure why they needed it. Of course, there was also already something fishy about the cable companies trying to downplay the importance of speed and the think-tanks railing against muni broadband. And today we know how things really played out: having all that broadband penetration led to the development of new, robust applications and services that nobody could have easily envisioned beforehand.

If you're a fan of Star Trek, or Dr. Who, or Battlestar Galactica, or anything else from the pantheon of television science fiction both old and new, then you should know that it all started this week in 1938 when the BBC aired the first known science fiction TV program. What's more, the program was itself an adaptation of a monumental piece of sci-fi history: R.U.R., the 1920 Czech play that introduced the word "robot" to the English language and the sci-fi genre.

In Australia, iiNet won its lawsuit against movie studios claiming it was responsible for user infringement, and the ruling offered a great explanation of why ISP's can't be copyright cops. The industry responded by immediately asking for a government bailout and, of course, this story and this fight were far from over. On the flipside, an Australian court this week also decided that Men At Work's Down Under did indeed infringe on a decades-old folk song.

There were lots of predictions flying around this week in 2000. The wireless, mobile future was becoming more apparent, and the potential for commerce therein becoming more exciting. That much came true, but so many of the details are off — like how credit cards stick around despite fifteen years of calls for alternatives. Kinda like Usenet, which is anything but mainstream, but also far from dead despite repeated predictions of its doom. And while gaming consoles have indeed evolved into more robust multimedia devices, they haven't replaced PCs the way some expected.

If you've studied economics, even casually or in passing, you've probably heard of tulip mania — a period of Dutch history in which tulip prices exploded then collapsed. It's generally presented as the first recorded economic bubble in history, and its lessons are still relevant to economics nearly 400 years later. This week marks the critical days in 1637 when the bubble began to pop — on February 3rd, tulip prices hit their peak, and by the 5th they were on the downturn. Spotty record keeping left a gap in the numbers after the 9th, but by May 1st the market had bottomed out.

Naturally this meant some were freaking out about the kids, saying they shouldn't use mobile phones. Some took it a step further, saying that blogs should be banned because they are supposedly a hotbed of pedophiles. Meanwhile, one savvy but dastardly kid was raking in the cash with eBay scams. Another kid found a bunch of errors in the Encyclopaedia Britannica, one more step in making people accept the power and brilliance of Wikipedia.

Web portals were a big topic in 2000. This week, we discussed the idea of commoditizing portals while Octopus.com experimented with more user customizability. We wondered if these approaches might sacrifice the power of brand, though some were suggesting that Yahoo's brand is its Achilles' heel.

Also this week in 2000, hot on the heels of the AOL merger, Time Warner announced its plans to merge music groups with EMI. They would go on to grapple with this plan for several months before giving up in October.

One-Hundred Years Ago

On January 25th, 1915, Alexander Graham Bell and Thomas Watson spoke to each other in the first transcontinental telephone call, from New York to San Francisco. It was nearly forty years after the same two men held the first wire conversation ever across a two-mile stretch between Cambridge and Boston.

This week in 2010 was the beginning of the NY times paywall, sparking off huge amounts of discussion online. We weren't convinced. Ultimately, the paywall didn't seem to hurt the newspaper, but it didn't seem to bring much benefit either (or at least not enough for many other publications to follow in its footsteps).

In 2005, plenty of people were freaking out about Wi-Fi security risks. This week, we pointed out that they were probably exaggerating — though we did find at least one reasonable analysis.

Remember the short-lived term "picture phone"? Well, it was pretty common at one point — enough so that the owner of picturephone.com thought that he could sell it for a million bucks. A Maryland lawmaker re-floated the idea for a porn TLD (which now exists, and nobody cares about it). Dell CEO Kevin Rollins made the confusing claim that the iPod is a one-hit-wonder just like Sony's Walkman. We were noting that the biggest issue with the iPod was actually the iTunes store and the fact that you didn't really "own" your music.

This week in 2000, Transmeta started making processors. Turns out that was the beginning of a sad story of innovation: by 2007, the company had shifted away from semiconductor production and entirely to IP licensing, then in 2009 its patent portfolio was acquired by, wait for it... Intellectual Ventures.

A former Microsoft exec bought a Bowling Association, but if you think that's odd, consider this: in 2000, Microsoft forgot to pay for several domain renewals and let sites like Hotmail lapse. A random guy used his credit card to pay the bill and renew them, and Microsoft gratefully sent him a $500 check for his trouble. This week, the guy decided to auction off the check.

Twenty-Nine Years Ago

On January 19th, 1986, the Brain computer virus was released into the wild. It was the first virus targeting IBM PCs running MS-DOS.

Today, the stats and rankings make it pretty clear that US broadband availability sucks. People were already noticing this all the way back in 2005, but it still wasn't entirely clear that it was such a huge problem at the time. At least it wasn't $400 a month for 10Mbps like one offering in Australia.

Early in the morning on Monday this week in 2000, we heard the murmurs that AOL and Time Warner would be merging. A few hours later, it was confirmed, the media landscape was drastically changed, and the reactions began pouring in.

That was just one of two big events this week fifteen years ago. It's also the week that Bill Gates stepped down as Microsoft's CEO and Steve Ballmer took his place. Meanwhile, in a less high-profile stepping-down, the Pentagon's Y2K expert left the agency.

On January 13th, 1910, the first public radio broadcast was transmitted from the Metropolitan Opera House in New York City. It was basically a failure, with the poor microphones of the day failing to adequately capture the live singers.

Bono thought that Chinese internet censorship was a good example of how the US should deal with music piracy. Viacom was in the thick of its lawsuit with YouTube, asking the court of summary judgment, but redacting nearly the entire argument because apparently the reasons were secret. Sony Pictures was refusing to send out some screener DVDs to promote its own films for the Oscars, because it was worried about piracy. A Finnish indie label claimed that it wouldn't sign any new bands unless the government magically stopped piracy. After that got some attention the company deleted that statement, and appears to still be releasing music. An analysis of the impact of the leak of the Wolverine film suggested that the leak may have actually helped at the box office. We were, once again, pointing out how there's basically no punishment for filing bogus DMCA claims -- and this was in the days before millions were sent every few days.

France was looking to put in place a right to forget law, while also floating an idea to just tax internet companies to fund record labels. France really, really hates the internet, huh? Meanwhile there was a good proposal in the UK to require copyright holders to have to demonstrate actual damages from infringement (unfortunately, that didn't go anywhere). UFC announced that it was going to sue individual downloaders even though the company knew that the cost of suing was more than any "loss." Speaking of copyright infringement, we wondered how some people could argue that inline linking was infringement, seeing as it's little different than deeplinking, which is legal. Of course, this fight lives on today over embedding. Meanwhile, in Singapore, remote DVRs were declared infringing, the opposite of the Cablevision case in the US.

As you may have heard, ten years ago I uttered the phrase "the Streisand Effect" for the first time, and that may be the most popular thing I've ever done. Yet another court told the RIAA that it can't subpoena info on downloaders without first filing a lawsuit (something some copyright trolls still don't believe). In response, the BSA asked Congress to change the law to force ISPs to hand over info (thankfully, that didn't happen). Someone conducted a whole study to point out that the entertainment industry was worried about file sharing.

This was the week that AOL announced it was buying Time Warner, and the entire internet landscape shifted. But not necessarily in a good way (though I still argue the idea was sound, the execution was dreadful). Fifteen years ago, Steve Jobs also dropped the "interim" part of his "interim CEO" title that he'd taken upon his return to Apple. With the failure of any doom and gloom scenarios post Y2K, some were angry at those who predicted the end of the world. Meanwhile, the SF Chronicle was predicting what would happen if tech stocks crashed (which they did 3 months later).

There was some discussion about the idea of using GPS to automatically slow down cars that were speeding (bad idea).
I was excited about MP3 watches at CES (I even had one for a few years, and it was great).

One Hundred And Twenty One Years Ago:

A 47-frame film of Fred Ott sneezing, created by WK Dickson (working for Thomas Edison), was filmed and given a copyright, making it "the earliest surviving copyrighted motion picture" thus kicking off the movie industry's over-infatuation with copyright that lives on to this day.

Movie studios started planning how to stop Netflix from showing their films (which is why Netflix still has a limited selection of streaming movies). This was also the week that Viacom realized that of all the videos it had sued YouTube over, it had actually uploaded over 100 of them itself -- meaning both that they were fully licensed and proving the point that if Viacom can't even tell which videos are licensed and which are not, it's ridiculous to think that YouTube should just magically know which ones are which. Record label Interscope was trying to get people to buy CDs by offering you a copy of Tweetdeck software "for free!" if you bought a CD. Except, of course, Tweetdeck has always been free. The MPAA ratings people gave "It's Complicated" an R rating for showing movie watchers that pot can make you giggle. Nina Paley made a key point in noting that the problem has never been middlemen, but monopolies.

One court totally overreacted and ordered an entire website taken down because of some defamatory comments on them, while another court correctly rejected a lawsuit against a consumer complaint site (ConsumerAffairs) properly noting that Section 230 protected the site from liability over actions of its users. Meanwhile, the Canadian government sought to take down a parody site by the Yes Men, and it resulted in the ISP actually taking down 4,500 sites. Censorship at its finest.

We wrote about how automakers were abusing copyright law to force you to pay more for repairs. FCC boss Julius Genachowski's Facebook account spammed all his friends with a "make money now!" offer. And a court tossed out a silly class action lawsuit against Apple from people who said the iPod resulted in hearing loss.

Finally, we're only looking back five years here, but five years ago we wrote about how the blog MusicAlly was looking back at the major labels' "online strategies" from 2001. They weren't pretty, though the strategies were fairly amusing -- mostly focusing on proprietary formats and DRM. As we noted at the time, all of the strategies were focused on trying to recreate the old retail world where scarcity ruled. That's a really dumb strategy in an age of digital abundance.

Ten Years Ago:

It was (not surprisingly) a bit of a slow week. Minnesota kept trying to tax VoIP companies despite FCC rules saying that VoIP shouldn't be taxed like regular phone lines. Verizon's anti-spam system went haywire and just started blocking all foreign emails (that's one strategy...). Some music labels were apparently experimenting with sneaking spyware into media files (a bit of foreshadowing for the Sony rootkit scandal, which went public the following year).

Our final post of 1999 pointed out that the Y2K bug scare didn't actually result in that much business. Some had been predicting that "fixing" the Y2K bug would be a boost to some tech companies' bottom lines. Wired Magazine, which had bizarrely sold off its entire digital arm, including the wired.com domain name was trying to buy it back -- a deal that wouldn't actually be completed until 2006. ABC was getting (rightfully so) nervous about dot com bubble startups buying Superbowl Ads, asking those companies to pay cash up front. And just to show you how different things were in 1999, people were excited about the fact that DVDs were catching on, after some had expressed skepticism that they'd find a real market. Things have changed....

Thirty One Years Ago

AT&T was broken up as a monopoly by the US government. And, today, it's almost all the way back to a monopoly. Watch that pendulum swing...

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]]>new-year's-editionhttps://www.techdirt.com/comment_rss.php?sid=20150101/17582129578Tue, 30 Dec 2014 06:13:02 PSTHow Copyright Forced A Filmmaker To Rewrite Martin Luther King's Historic WordsJonathan Bandhttps://www.techdirt.com/articles/20141229/13390429545/how-copyright-forced-filmmaker-to-rewrite-martin-luther-king.shtml
https://www.techdirt.com/articles/20141229/13390429545/how-copyright-forced-filmmaker-to-rewrite-martin-luther-king.shtml
Among the most powerful moments of Selma, the new film about the march Martin Luther King, Jr. led in 1965 in support of voting rights for African Americans, are the speeches, sermons, and eulogies King delivered during that tumultuous period. However, the speeches performed by actor David Oyelowo in the film do not contain the actual words spoken by King. This is because the King estate would not license the copyright in the speeches to filmmaker Ava DuVernay. Thus, the King estate's aggressive stance on copyright has literally forced the re-writing of history.

According to the Washington Post, the King estate licensed the film rights to King's speeches to DreamWorks, with Steven Spielberg producing any resulting films. DuVernay said that she never even asked for the rights to King's speeches "because we knew those rights are already gone, they're with Spielberg." She added that she knew that there were strings attached to the rights: "with those rights came a certain collaboration." In other words, the King estate uses its control over the copyright to control how King is portrayed. The Post article suggests that this control has prevented the making of a feature film about King—until now.

In the summer of 2013, when the nation was commemorating the 50th anniversary of the March on Washington, the King estate refused to allow broadcasts of King's "I Have a Dream" speech. At the time, I wrote a blog post questioning the policy justification for one of the most important speeches in American history remaining under copyright 50 years after its delivery, and 45 years after the death of its author. I argued that King did not need the economic incentive provided by copyright protection to write the speech or deliver it so compellingly. I further asserted that copyright protection was not necessary to ensure that the speech remained in distribution 50 years after the March on Washington. I also responded to the argument that royalties from King's speech have financed the work of the Martin Luther King Jr. Foundation promoting civil rights and social justice by noting that funding valuable institutions is not the purpose of copyright. Additionally, the cause of civil rights arguably could be better advanced by the broadest possible dissemination of his speech, rather than by exploiting it to generate revenue for the Foundation.

The same arguments can be made with respect to King's speeches surrounding the march in Selma. King obviously was not motivated by financial gain when he wrote those speeches. Further, copyright protection was not necessary to ensure that the speeches remained available in the decades since. To the contrary, copyright protection prevented the derivative use of those speeches in the film, thereby potentially depriving new audiences of King's message.

The Washington Post's review of Selma suggests that the director Ava DuVernay made a virtue of necessity in response to her inability to secure the rights to the speeches:

"in a brilliant work-around DuVernay approximates [King's] words, allowing viewers to focus on their meaning rather than how literally Oyelowo reproduces them." Likewise, the New York Times' review observes that DuVernay turned her lack of permission to use the speeches into "a chance to see and hear [King] afresh." In the film, King is "less an orator than an organizer" and is "a man trying to navigate his public role, his private life, and the expectations of his allies and friends."

Proponents of long copyright term might point to these reviews as proof of the copyright system working properly. Denied the ability to quote King directly, DuVernay was forced to create her own expression—paraphrases of King's speeches—and her own interpretation of King's life.

At the same time, the Times recognizes that the inability to quote King directly "may be a blow to the film's authenticity." And this is a serious problem, particularly in a world where people are far more likely to learn history from a biopic than from a textbook. The director of a biopic already must compress complex events that unfolded over months (in the case of Selma) or years (in the case of the Alan Turing biopic, The Imitation Game) into two hours. The director must also add dramatic tension in order to sustain audience interest. (For example, Joe Califano, then a member of the Johnson Administration, has accused DuVernay of falsely portraying a series of conflicts between Johnson and King over voting rights, when in fact they agreed with the both the strategy and the tactics for achieving this objective.) The inaccuracies created by this compression and invented dramatic tension should not be compounded by concerns of potential copyright infringement liability.

Fair use is the obvious solution to the problem of copyright constraining the presentation of historical events. In Bouchat v. Baltimore Ravens, discussed in this post, the Fourth Circuit found the National Football League's use of the "Flying B" logo in highlight films to be transformative because the logo was used "as part of the historical record to tell stories of past drafts, major events in Ravens history, and player careers."

The court further stated:

"Were we to require those wishing to produce films and documentaries to receive permission from copyright holders for fleeting factual uses of their works, we would allow those copyright holders to exert enormous influence over new depictions of historical subjects and events. Such a rule would encourage bargaining over the depiction of history by granting copyright holders substantial leverage over select historical facts."

Similarly, in Fox News Network v. TVEyes, discussed in this post, the court concluded that TVEyes' inclusion of clips in a search engine for broadcast television was a transformative use. The court found that "TVEyes' message, ‘this is what they said'—is a very different message from Fox News'—‘this is what you should know or believe.'"

The primary purpose of including King's speeches in the film Selma would be to inform its viewers of what King said and the impact it had on his audience. Although Ava DuVernay almost certainly believed in what King said, and wanted her viewers to believe it too, that purpose would be secondary to educating her viewers about King and his impact on the course of history.

Based on TVEyes and Bouchat, DuVernay would have had a strong fair use defense had she used King's actual words rather than just paraphrased them. Perhaps she (or her lawyers) decided that historical accuracy was not worth the risk of litigation with the King estate. While it appears that DuVernay remained true to both the style and content of King's speeches, the next director might not be so scrupulous. Indeed, an inept paraphrase of one of King's speeches at the Martin Luther King, Jr. Memorial in Washington, D.C., made him sound, according to Maya Angelou, "like an arrogant twit." The paraphrase subsequently was removed.

The paraphrasing of Martin Luther King, Jr. puts us on the slippery slope to truthiness. The King estate should be far more worried about people paraphrasing King than quoting him accurately.

China took unending Hollywood-funded pressure to ramp up its efforts to stop copyright infringement... and used it as an excuse to censor more of the stuff on the internet that the Chinese government didn't like. Meanwhile, a German court decided that TV schedule information was covered by copyright. Demi Moore's lawyers thought that it was defamation to suggest that her images had been photoshopped. And the NBA was fining players for happily tweeting about victories too soon after the game was done.

There are two other interesting stories, just because nearly identical issues have cropped up this week, five years later. First, we had a discussion on whether or not sites should be forced to take down content if a court rules against the user -- if the user can't be found or is unable to do anything about the content. The sites are protected by Section 230 and don't need to do anything -- but some are suggesting otherwise. In fact, a judge in NY was suggesting that a Right To Be Forgotten might be a good remedy in this situation. The second was a story out of Chicago, done by the Chicago Tribune, noting that red light cameras seemed to be leading to more accidents. We've been reporting on this exact thing for many, many years, but this past week the very same Chicago Tribune reported on the very same issue again after doing a more detailed look at the numbers. Turns out its story from five years ago still held true: red light cameras increase crashes.

Ten Years Ago:

Do you remember when Cablevision thought that it was going to get into the satellite TV game and compete with DirecTV and Dish? It was called Voom and it failed miserably. Blockbuster (remember that company?) was realizing that Netflix was real competition. During this holiday season -- but years before smartphones were really a thing -- we were discussing the issue of bringing your email on vacation.

Despite all the fears about kids learning "texting speak," studies were showing that kids can understand the context and know they have to write differently in formal settings rather than sending a text to a friend. And yet some people still don't believe this. Trust me: kids are smarter than you think. Finally, we were learning about more and more documentaries that could never be shown again, because original licenses for archival footage and/or music wouldn't allow them to ever be shown again.

Fifteen years ago, there were some early attempts to monitor driving traffic by looking at mobile phone data. The idea seemed perplexing to us -- and we wondered about the privacy implications. Of course, fifteen years later, we're all tracked everywhere we go... but we have pretty decent information about the traffic when we're driving. Finally, in those early days on the web, you could still put up fake job listings and convince people they were interviewing for a job at CBS.

Thirty Two Years Ago

Time Magazine named "the personal computer" as its "Person of the Year" -- the first time it went to a non person.

As regular Techdirt readers know, we don't care about the fact that there are some sites out there that scrape and copy tons of our content, and such sites have been around for a long time. In 2004, however, we were especially baffled to find one being used to promote house cleaning services. Today, such PageRank-scamming setups are commonplace and instantly dismissed as stupid, but ten years ago they seemed really weird.

Oh, and long before all the DRM action of 2009, the same things were stirring: Sony unveiled an exciting new DRM for CDs.

Fifteen Years Ago

During these few years around the turn of the century, there was a seemingly endless flurry of versions of the Windows operating system. This week in 1999 marked a major transitional milestone: the completion of Windows 2000, which would be released a few months later, and was the last version of Windows before XP commenced a new era. Meanwhile, in an early earth-tremor foreshadowing modern cloud computing and things like ChromeOS, MyWebOS was working on the in-browser operating system.

In a recent history column, we talked about the fact that Bill Gates was getting 4-million spam emails a day in 2004. Well, looking back on posts from this week ten years ago, it appears that wasn't quite true: Steve Ballmer admitted he was exaggerating, and the number is actually 4-million a year.

As the world drew closer to the year 2000, not-actually-millennium-fever pervaded the culture, leading Wired to go maybe a little too in-depth on the subject of 2000 not really being the start of a new millennium. Speaking of Wired, this week in 1999 also saw the launch of the Vapourware Awards, though sadly the link in that post is one of the few that seems to no longer be working on Wired.

Well, this is a big one: on December 5th, 1969, just over a month after the very first ARPANET message was sent, the entire original four-node network was established. It consisted of routers at UCLA, UCSB, the University of Utah, and the Stanford Research Institute. Within a few months the ARPANET would connect to the East Coast, and by 1981 had over 200 host computers with a new one connecting every 20 days.

ESPN suspended Bill Simmons (from Twitter) for calling someone deceitful. Huh. That sounds familiar. ACS:Law, which was the UK version of Prenda before Prenda existed was just ramping up. Spam King Alan Ralsky was sent to jail. Microsoft was trying to shut someone up after they revealed some "flaws" in Microsoft's plan to bribe users to use Bing instead of Google. Speaking of Bing, Rupert Murdoch was toying with the idea of taking News Corp. sites out of Google's search results if Microsoft paid him enough. And Hulu was furious that people were actually embedding its videos, despite the fact that Hulu provided tools to embed.

We looked at how Hollywood was really at fault for a significant part of movie piracy, by not giving users what they wanted. Similarly, we looked at how the recording industry spent so much on payola to get people to hear their music for free -- and yet were so angry about piracy, which got people to hear their music for free. Speaking of Hollywood, the heads of the big studios had pretty much all settled on a new talking point: that they were really concerned about the independent filmmaker, rather than big studios when ti came to piracy. Of course, more indie films were being made than ever before, and those indie filmmakers now have many more ways to get supported than ever before, so that rang pretty hollow. And, a record label exec was arrested for not using Twitter to ask Justin Bieber fans to disperse.

We were celebrating Wil Wheaton saying people should "get excited and make things" rather than griping about how business models and such were changing online. Meanwhile, we highlighted some research about how copying and imitation are actually quite good for society, even if people think they're bad.

Ten Years Ago:

We were talking about how there were over 400 companies selling "VoIP" offerings, and wondering how they could possibly survive (spoilers: they didn't). The first case we'd heard of where scammers were trying to sneak malware through banner ads on popular sites. Unfortunately, this remains an issue today. People were starting to realize that stores like Best Buy were really showrooms for Amazon. And a court told the MPAA that it couldn't lump a bunch of unrelated file sharing lawsuits into the same case.

Also, ten years ago, Perfect 10 sued Google for showing thumbnails of some of its porn images hosted on other sites. That case would result in one of Perfect 10's many courtroom losses, and also set a good precedent concerning fair use. Also, ten years ago Congress started pushing for a new job in the White House, the IP Enforcement Coordinator -- a role they finally pushed through as part of the ProIP Act in 2008 (with the job coming into existence in 2009).

Fifteen Years Ago:

Ah, such a quaint time. We were excited about the possibility of paying bills online (seriously). This was the era of the "free ISP," though the catch was that if you used them, you had to deal with ads from them. So we found it interesting that a new one was launching, and its main selling point was that it was a free ISP with no ads. Instead, they hoped you'd buy stuff from their e-commerce store. Media merger potential is always in the news, so fifteen years ago, Time Warner as looking to buy NBC. Oh, and remember when AOL was so powerful that it could be evil without consequence? In order to ramp up its business of spamming its own users, AOL claimed that all of the opt-outs from spam had "expired" and users had to re-opt-out to avoid being spammed by AOL partners in the future. How nice. No wonder people started leaving in droves soon after.

Forty two years ago:

Atari released Pong, the first "commercially successful video game" kicking off the start of the video game revolution. Two years ago, on the 40th anniversary, Buzzfeed published an astoundingly wonderful history of Atari and Pong. Go read it.

Sometimes writing these posts is a touch depressing, because they really highlight just how long it's been taking for some messages to sink in. Even though 2009 was full of freakouts about filesharing and "free", it can't be written off as an understandable reaction to something brand new when, the very same week in 2004, folks like Jeff Tweedy had already gotten the message:

A piece of art is not a loaf of bread. When someone steals a loaf of bread from the store, that's it. The loaf of bread is gone. When someone downloads a piece of music, it's just data until the listener puts that music back together with their own ears, their mind, their subjective experience. How they perceive your work changes your work. Treating your audience like thieves is absurd. Anyone who chooses to listen to our music becomes a collaborator. People who look at music as commerce don't understand that. They are talking about pieces of plastic they want to sell, packages of intellectual property. I'm not interested in selling pieces of plastic.

That could be a direct response to Lily Allen saying she'd prefer somebody buy a counterfeit CD than download her music for free — but it came five years earlier.

You could almost say this week marks the true beginning of the culture war over filesharing that rages to this day, for in 1999, this is when the RIAA announced it would sue Napster. It would eventually win of course — and as a result, fuel the innovation that gave rise to P2P sharing and torrents. Mission accomplished!

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]]>the less things changehttps://www.techdirt.com/comment_rss.php?sid=20141122/11031629220Fri, 21 Nov 2014 18:27:45 PSTSenators Hoping To Keep CIA From Destroying Most Of Its Employees' EmailsTim Cushinghttps://www.techdirt.com/articles/20141120/09000229206/senators-hoping-to-keep-cia-destroying-most-its-employees-emails.shtml
https://www.techdirt.com/articles/20141120/09000229206/senators-hoping-to-keep-cia-destroying-most-its-employees-emails.shtml
The CIA and Senate have found more to fight about. With the "Torture Report" mostly in the hands of the White House at this point, the two are now battling over the CIA's planned alterations to its email retention policies.

Key senators are pushing back against a CIA plan to destroy older emails of “non-senior” agency officials.

The heads of the Senate Intelligence Committee on Wednesday sent a letter opposing the proposal, under which only the highest ranking CIA workers would have their email correspondence permanently saved.

The plan “could allow the destruction of crucial documentary evidence regarding the CIA’s activities that is essential for Congress, the public and the courts to know,” Chairwoman Dianne Feinstein (D-Calif.) and Vice Chairman Saxby Chambliss (R-Ga.) wrote to the National Archives...

The senators are asking the National Archives to step up and somehow prevent this from happening -- most likely by declaring "non-senior" emails to be retainable records that must be turned over rather than destroyed. The CIA would prefer to destroy the emails of all but the top 22 employees three years after they leave, or when "no longer needed, whichever is sooner." Unfortunately for the senators making this request, the National Archive has already signaled its agreement with the CIA's proposed retention schedule changes.

In tentatively approving the request, the National Archives noted that the emailed information “is unlikely” to exist in other forms that will be marked for permanent storage.

Any information not found in those other files likely “has little or no research value,” it added.

Senators Feinstein and Chambliss -- in rare agreement with transparency and government accountability activists -- disagree with the National Archives' assessment.

“In our experience, email messages are essential to finding CIA records that may not exist in other so-called permanent records at the CIA,” Feinstein and Chambliss wrote.

Longer retention is needed, especially for an agency as secretive as the CIA. The standard wait period for sensitive document declassification is 25 years. Correspondence related to declassified documents will be long gone by that point.

Even in terms of normal FOIA requests, three years is cutting things close. Rarely does an FOIA-worthy event come to light within days or weeks of its occurrence. It's generally weeks, months or years down the road. By the time documents are requested, ignored by the CIA's FOIA staff and finally pried free by a federal lawsuit*, responsive documents may already have been destroyed. Without a doubt, the CIA knows this is a distinct possibility and any trimming of retention periods only makes it more likely that relevant communications will be permanently removed from circulation.

*YMMV

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]]>agency-replacing-'delete'-buttons-faster-than-everhttps://www.techdirt.com/comment_rss.php?sid=20141120/09000229206Thu, 20 Nov 2014 15:49:51 PSTSmall Change To National Archivist's Powers May Keep Government Agencies From Destroying Embarrassing DocumentsTim Cushinghttps://www.techdirt.com/articles/20141114/15075329149/small-change-to-national-archivists-powers-may-keep-government-agencies-destroying-embarrassing-documents.shtml
https://www.techdirt.com/articles/20141114/15075329149/small-change-to-national-archivists-powers-may-keep-government-agencies-destroying-embarrassing-documents.shtml
There may be some better news on the way for those of us who like free-as-in-FOIA information and an accountable government. Professor and attorney Douglas Cox points out that an amendment to the statutes governing the National Archive may give that agency the power to keep records of public interest from being deleted, destroyed or otherwise hidden.

Having passed every step but presidential approval, H.R. 1233 (Presidential and Federal Records Act Amendments of 2014) [pdf link], makes the following small, but important, change to the Archivist's powers and duties. Here's the portion Cox highlights at Document Exploitation:

DETERMINATION OF DEFINITION.—The Archivist’s determination whether recorded information, regardless of whether it exists in physical, digital, or electronic form, is a record as defined in subsection (a) shall be binding on all Federal agencies.

As Cox explains, this single paragraph allows the Archivist to determine what is or isn't a record -- something that must be retained -- and makes it binding across all federal agencies. If that passes, government agencies will no longer be able to exploit the law to bury embarrassing or incriminating documents.

[T]his authority allows the Archivist to close up - or at least tighten up considerably - the horrible loophole in the law that has been manipulated in a long line of cases of government document destruction or alienation.

Cox goes on to note that this isn't a theoretical harm. It's something that has happened time and time again over the past several years.

[F]rom the State Department's indefensible decision to allow Henry Kissinger to remove (and treat as his personal property) the transcripts of his official telephone calls as the Secretary of State all the way up to the CIA's destruction of the interrogation tapes. This is the same loophole that could legitimately endanger the long-term survival of the CIA's "Panetta Review" and necessitated the actions of the SSCI staff in exfiltrating a copy from the CIA to a Senate vault (as I described at length here - it is not a conspiracy theory), which is further complicated now by fears that new leadership at the SSCI will return the Panetta Review to the exclusive custody of the CIA.

The loophole isn't in the "record" language. That's still very broadly defined and (unfortunately) rather malleable. The loophole is which records are "appropriate for preservation," something that has been left up to each agency to determine. And "determine" they did, right up to the point that DC circuit court judges pointed out that government agencies have a "built-in incentive" to destroy records related to "mistakes."

Cox notes that while this amendment is promising, it doesn't fix everything -- especially some records-related circular reasoning that has made its way into the definition of "records" with the assistance of the National Archives and Records Association itself. But it is a step forward.

To be clear, the Archivist neither has the funding, nor the personnel, nor the appetite to look over the shoulder of every federal employee to micromanage whether each email is, or is not, a record, but this bill, once signed by the President, will give the Archivist an important power that should not be left to rot on the vine.

Cox recommends the first action it should take with its new powers (should the President sign it into law) is ensure the Panetta Review is designated a permanent federal record to keep the CIA from performing any extra "editing."

To understand what's happening, you have to remember that the entire article doesn't disappear from the Google index, it's just that it won't show up if you search on a specific name. And since the RTBF is not supposed to apply to public personalities, chances are it's not Breivik who is the issue here. In fact, the quoted part of the manifesto includes Breivik talking about his godmother, a political refugee from Chile, and a few other foreign friends he had as a kid, as part of his proof that he's "not a racist." Most of his childhood friends only have their first names listed, but the godmother is named in full -- and you might understand why she's not exactly happy to be connected to a sociopathic mass murderer whenever someone Googles her name.

But... is that really a legitimate reason to remove the search result? It still seems immensely troubling that the end result of this is to remove accurate responses to research queries. Yes, it may be embarrassing, depressing and even emotionally stressful to see such Google results -- but it's also accurate. Shouldn't we be more focused on dealing with the issues of why it's so problematic to have your name associated in this manner instead of trying to pretend it never happened at all?

Today, Monster Cable is well known as an aggressive trademark holder, but ten years ago we were just catching on to the company's pattern as it sued job site Monster.com and threatened many others. We did see one interesting trademark resolution this week, too: the band The Postal Service reached an agreement with the US Postal Service wherein they'd help promote the USPS with their music.

In other news, Glenn Beck was not allowed to seize the domain name GlennBeckRapedAndMurderedAYoungGirlIn1990.com, despite his attempts. Venezuela was blaming video games for violence. A court said that using a domain registration privacy service was "material falsification and David Brooks claimed that mobile phones were destroying courtship (I wonder what he thinks of Tinder).

A court ruled that Microsoft was a monopoly while Webvan -- one of the classic dot com bubble startups -- had its IPO right at the height of the bubble era, just as competitor, HomeGrocer raised $100 million. Another classic of the bubble era was the online pet store category. While Pets.com was the most famous there were half a dozen or so competitors. One of them, Petopia, raised $66 million before launching and claimed its "differentiating factor" was it had more money than everyone else. And then, fifteen years ago this week two other online pet stores raised much more money, each breaking $100 million for unproven businesses in a highly competitive market. Think about that when people claim we're in a bubble today. Over in Europe, some folks were trying to copy Silicon Valley's bubble with the infamous boo.com -- and it wasn't going well (for the investors, at least).

Back in 1999, Microsoft was already looking at ebooks while Barnes & Noble bought books.com, which had been an attempt to take on Amazon by Cendant (which, at one time, had been considered an up-and-coming internet company) as well as a big stake in a publishing on demand company.

Fifteen years ago was also the week when we got one of the first absolute nutty web-meme/internet celebrities with the rise of Mahir, the "I Kiss You!!!" guy. His original web page has been moved, but you can see it here, and for you young kids who missed the Mahir phenomenon, you may immediately notice the resemblance to the later Sascha Baron Cohen character Borat -- something that apparently angered Mahir.

Twenty Six Years Ago:

The infamous Morris worm was unleashed on the internet, by Robert Morris -- who was just trying to measure the internet. Instead, it ended up taking down much of the internet, and Morris has the unfortunate claim to fame of being the first person convicted under the Computer Fraud and Abuse Act (CFAA). This represented the first of many abuses of the CFAA law, which still is in desperate need of fixing, and which Congress still refuses to fix. On a somewhat related note, years later, Morris went on to cofound YCombinator. Also, in the very first YCombinator class, one of the entrepreneurs was Aaron Swartz, who (as you well know) went on to kill himself while facing criminal charges under the CFAA for downloading too many journal articles from a website he had legal access to. Today would have been Aaron Swartz's 28th birthday (yes, he was born two years to the day before the Morris worm), and there are a bunch of hackathons in his honor going on.

A lot of these history posts have mentioned the lead-up to the GeoCities shutdown, and this week in 2009 it finally happened. Goodbye, GeoCities.

It's easy to forget now that Netflix started as a DVD-rental-by-mail service before it became a streaming juggernaut, and for a long time the streaming service was considered an add-on. So it's funny to hear Reed Hastings in 2009, claiming that Americans don't want a streaming-only service. How times change.

Also, back in 2004, there was not yet such a thing as Google Earth. In fact, it was this week ten years ago that Google bought Keyhole and laid the groundwork for the insanely comprehensive maps/earth service we enjoy today.

1999 was long before anyone talked about the "cloud". In fact, the whole idea of online storage space was new and a little odd, met with doubt by many people including us here at Techdirt. We were also a little dubious about the idea of online retailers opening brick & mortar shops, and we were a little more on the money with that one.

Twenty Years Ago

Before Techdirt was around, HotWired launched in 1994. It was the first commercial online magazine, and notable for being an entirely distinct entity from the print magazine Wired, even though it was launched by the same company. Of course, HotWired also gave birth to the banner ad as we know it today, selling the first ever display campaign to AT&T. So, mixed blessings all around...

It seems like there were a lot of shifting opinions this week in 2009. Media analysts began to realize that charging for online news was almost surely a losing proposition; Gartner was finally realizing that social networking at work isn't so bad; despite an anti-piracy "education" campaign, people in Sweden were becoming less and less concerned about file sharing — and, indeed, talk about the "death of file sharing" at the time was clearly exaggerated, while several musicians were beginning to realize that it's not as evil as they thought. And Europeans were being a bit confusing, supporting the idea of digitizing books as long as Google wasn't the one in charge.

It's a shame that so many links from 1999 are now broken. Fifteen years ago, we pointed to an article by Tim Berners-Lee on the future of the web — but sadly, the link now just puts you on the MSNBC home page. I haven't been able to track down the exact article, but I suspect it was related to his book Weaving The Web, released the same year.

Two years ago, Encyclopaedia Britannica stopped publishing in print — but back in 1999 it had just launched its website, only to see it knocked out by high traffic. Technical difficulties also plagued the online chess match between Kasparov and the world.

Amazon's one-click purchase patent is among the most infamous "bad web patents", and this week in 1999 the company sued Barnes & Noble over it. A less high-profile web battle also broke out, with funeral directors fighting against online casket sellers. And a bunch of software companies discovered that nobody cared about their No Piracy Day.

1999 was a post-Playstation world, and a new big console war was brewing. At the time, the X-Box was a "mysterious" tease, the GameCube was still codenamed "Dolphin", the PS2 was gearing up for release in Japan, and the Sega Dreamcast was still considered a serious contender.

153 Years Ago

October 21st, 1861 was a landmark day in the history of telecommunication: the First Transcontinental Telegraph was completed, connecting the small existing networks on the east and west coasts, and ushering out the Pony Express (which shut down two days later). The overland line would play a major role in America for the next eight years before being replaced by a new set of lines running along the Transcontinental Railroad route.

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]]>sweet-reminiscencehttps://www.techdirt.com/comment_rss.php?sid=20141025/10291228939Thu, 23 Oct 2014 21:01:00 PDTCourt Ruling: The NFL Isn't Violating Player's Publicity Rights By Selling Videos Of Historical Game FootageTimothy Geignerhttps://www.techdirt.com/articles/20141013/11061628811/court-ruling-nfl-isnt-violating-players-publicity-rights-selling-videos-historical-game-footage.shtml
https://www.techdirt.com/articles/20141013/11061628811/court-ruling-nfl-isnt-violating-players-publicity-rights-selling-videos-historical-game-footage.shtml
While the NFL isn't necessarily great at preserving its own historical footage in sum total, the fact is that the league makes a great deal of money by selling copies of game footage and interviews from seasons since past. Recently, three former players opted out of a settlement the league had agreed to in a class action case and decided to pursue their own rewards for the NFL's use of old game footage and interviews. Their theory is that the league violated their publicity rights. Their theory is wrong.

Now, thanks to the First Amendment and two other reasons, U.S. District Judge Paul Magnuson has ruled that the claims can't survive. In coming to the decision, Judge Magnuson looks at various productions like NFL Films' “1973 Houston Oilers Season Highlights" and "Cliffhangers, Comebacks & Character: The 1981 San Diego Chargers.” These productions weren't about Dryer, Bethea or White per se. The players were nevertheless shown on field, sometimes mentioned by name, and in some instances, interviewed about their playing days.

The judge finds that these productions weren't commercial speech. The plaintiffs brought forward a theory that the productions were advertising because they served to enhance the NFL's brand, but the judge says that "brand enhancement alone is not sufficient to render a production advertising as a matter of law."

Because the speech was deemed to not be advertising in nature, it falls under the protection of the First Amendment. That would be enough for the publicity rights claim to fall apart. Add to that the judge's finding that the former players were well-aware that game footage and interviews would be used in future broadcasts or publications before participating in the games or the interviews and you have a slam dunk dismissal. Even so, Judge Magnuson wasn't done.

Further, and not insignificantly, the judge finds a third reason why the lawsuit must fail. The judge writes that the NFL has the right to exploit "copyrighted game footage in expressive works such as the NFL Films productions at issue here. The NFL’s valid copyright in the game footage forecloses Plaintiffs’ publicity claims."

While I'm no fan of the current state of copyright in this country, seeing one form of intellectual property cannibalize another, more horrible form of IP is admittedly entertaining. Now, the NFL wins this case, but as the article points out, the NCAA may be the most interested observer in the metaphorical courtroom. The college sports megalith is in the middle of appealing the O'bannon case that is currently preventing me from playing NCAA Football '15 and could theoretically bring the association to its knees, all while giving way to an era in which college athletes get paid for their service. The NCAA's entire argument in that case rested on First Amendment grounds, which would appear to be bolstered by this NFL win.

We were still wondering about the attempts to insert the morality question into copyright, noting that it is almost always used to "cover up the inability to justify the expansion of rights on economic grounds." In a somewhat related post, we wondered what kind of industry sets up a group to specifically oppose what consumers want -- and the answer was: Hollywood. Another such group is the BSA, and it was finally having some of its nastier practices revealed. Sticking to the copyright question, we wondered if libraries really needed licenses to lend out ebooks, since they don't need permission to lend out regular books. ASCAP had a judge disabuse it of the notion that a ringtone is a public performance while a guy who uploaded his own book to Google and clicked the wrong button (making it available) then sued Google for infringement.

The Associated Press and News Corp. were demanding money from Google (of course) along with other "aggregators" though, News Corp. apparently forgot it had its own aggregators who didn't appear to pay up any money at all. Oops. NY's Department of Labor reduced the unemployment benefits of an unemployed blogger because he put AdSense on his blog (making around $1/day), claiming that it was unrevealed employment.

John Ashcroft's Justice Department was eager to be Hollywood's private police force. But, in an important decision, the Supreme Court decided not to review an important ruling that said the RIAA couldn't demand names from ISPs without first filing a lawsuit (copyright trolls keep "rediscovering" this supposed "loophole" without checking out the case law on it). Starbucks thought it was going to get into the music business while Amazon thought it was going to rent DVDs (a la Netflix). Google also released its desktop search offering, which never took off.

Remember the OQO modular computer system? Probably not. It was insanely hyped varporware that people were talking about for years, but then it finally came out ten years ago and was overpriced and not very impressive. Applied Digital, a company famous for overstating claims about its "implantable" VeriChip was up to its usual games. Diebold e-voting machines had their usual problems. The FCC was in the process of killing off line sharing and people were realizing that all the doom and gloom predictions about how the phone "do not call" list would kill the economy were not even close to true.

On the patent front, noted patent maximalist Priceline was suing Microsoft for patent infringement, while Visa had to settle a lawsuit with a woman who gambled away $70,000 online and blamed Visas for not stopping her. While it obviously didn't apply to that woman, studies were showing that people were still afraid to use credit cards online.

Oh yeah. Also, 15 years ago this week, we wrote a short post about how people kept stealing other people's AOL passwords to break into their accounts. The story itself isn't noteworthy. But for the next fifteen years -- yes, right up until now -- idiotic people doing searches on "how to steal AOL passwords" somehow ended up on that page and would post details of the accounts whose passwords they wanted.

Twenty Years Ago:

We weren't yet publishing, but the first Netscape Navigator was released, sparking part of the revolution that led us to start Techdirt just a few years later. I still remember when Netscape came out. I had been a loyal user of the Mosaic browser, and so I rushed to download Netscape. But, since I had a pokey 2400 baud dialup modem in my dorm room at college, I had to make sure my roommate was okay with me leaving the phone line tied up all night to download the "massive" Netscape file (which I think was a massive 4 megs). If I remember correctly, the phone hung up in the middle of the first night and I had to wait until the next night to get the whole file down.